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Part IB of the Crimes Act 1914 (Cth)

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Last Updated: 28 June 2010

List of Sub-headings:

Summary Disposition for Mental Illness Under the Crimes Act 1914 (Cth)
Scope of s 20BQ
- The Effect of an Order Under s 20BQ

Commentary on Summary Disposition for Mental Illness Under the Crimes Act 1914 (Cth)

Section 20BQ of the Crimes Act 1914 (Cth) provides a diversionary approach for the summary disposition of a person suffering from a mental illness or intellectual disability: Boonstoppel v Hamidi [2005] SASC 248; (2005) 155 A Crim R 163, [29].

Section 20BQ(1) allows a court to: dismiss the charge and discharge the person either conditionally or unconditionally; or, make further appropriate orders: see below.

In making an order for summary disposition under s 20BQ(1) the court may inform itself as it sees fit, but not so as to require the person charged to incriminate himself or herself: s 20BR.

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Scope of s 20BQ(1)

Section 20BQ(1) is only available in proceedings in a State or Territory court of summary jurisdiction in respect of a federal offence.

Where an Order May be Made

The language of s 20BQ sets out a two-stage process. [1]

First stage:

• the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territory: s 20BQ(1)(a);

  or

• the person charged is suffering from an intellectual disability: s 20BQ(1)(a); and

Second stage:

• on an outline of the facts alleged in the proceedings, or such other evidence the Court considers relevant, it would be more appropriate to deal with the person under this section than otherwise in accordance with law: s 20BQ(1)(b).

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Section 20BQ and Section 19B

In Morrison v Behrooz [2005] SASC 142; (2005) 155 A Crim R 110, [44], Grey J observed that:

There appears to be little authority on the application of section 20BQ and its relationship with section 19B. However, the language of s 20BQ suggests that its scope is limited to circumstances where no plea has been entered. The section does not appear to contemplate a conviction being recorded. Section 20BQ appears to authorise a diversionary process in the case of mental illness. This analysis of the section would support the magistrate’s view that the section did not have application where a defendant is fit to plead.

See also Potts v Bonnici [2009] SASC 199.

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Options Available to the Court

Where the court considers that ss 20BQ(1)(a)-(b) are satisfied, the court may by order:

Dismiss the change and discharge the person:

• unconditionally: s 20BQ(1)(c)(iii); or
• into the care of a responsible person unconditionally:s 20BQ(1)(c)(i); or
• into the care of a responsible person subject to conditions, for a specified period that does not exceed 3 years: s 20BQ(1)(c)(i) ; or
• on the condition that the person undergo assessment or treatment or both, for a total period of less than 3 years: s 20BQ(1)(c)(ii).

Alternatively, the court may do one or more of the following:

• Adjourn the proceedings:s 20BQ(1)(d)(i); and/or
• Remand the person on bail: s 20BQ(1)(d)(ii); and/or
• Make any other order that the court considers appropriate: s 20BQ(1)(d)(iii).

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The Effect of an order under s20BQ

An order made under s 20BQ(1)(c) to dismiss the charge acts as a stay against any proceedings, or any further proceedings, against the person in respect of that offence: s 20BQ(2).

Under s 20BQ(3), if the court makes an order pursuant to s 20BQ(1), it must not make an order, in respect of the offence, under the following:

• Section 19B - Discharge without conviction
• Section 20 - Conditional release after conviction
• Section 20AB - Additional sentencing alternatives
• Section 21B - Reparation for offences

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Enforcement

The Australian Law Reform Commission notes that there are no enforcement mechanisms in the Crimes Act 1914 (Cth) for orders made under s 20BQ. [2]

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Footnotes

[1] Boonstoppel v Hamidi [2005] SASC 248; (2005) 155 A Crim R 163, [29]. This approach was followed in Potts v Bonnici [2009] SASC 199, [6].

[2] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [28.10].